Tuesday, September 23, 2014
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Ottawa pushes for St. Anne's documents to stay secret

Government sought a sealing order, preventing evidence given in the recent hearing over St. Anne's evidence from being disclosed.

By: Tim Alamenciak News reporter

Toronto Star

The federal government has asked to keep secret the evidence of abuse at St. Anne’s residential school that was entered into open court during a hearing that granted access to documents the government had previously refused to hand over.

A judgment issued last week said the Truth and Reconciliation Commission and the body responsible for administering settlement claims could access thousands of documents, including those related to a 1992-1996 Ontario Provincial Police investigation that resulted in convictions of several staff members.

During the hearing, the government requested an order sealing evidence given in court, which would prevent the public from accessing it.

Justice Paul Perell ruled that there was not enough notice given to the media to permanently seal the evidence he relied on to make his decision, but placed a temporary seal until a hearing next month to decide the extent of the restrictions, according to documents obtained by the Toronto Star.

“There is a very high onus to justify a sealing order, and I am not satisfied that I have a sufficient evidentiary record to justify a sealing order,” he wrote in his order.

Perell ruled that documents, such as requests for direction and factums, that were already public should remain public but that “the balance of documents” should be sealed until the Feb. 24 hearing where all sides, including lawyers representing the media, will be prepared to make presentations.

The factum submitted by Fay Brunning, a lawyer representing 60 survivors, tells of widespread physical and sexual abuse suffered by aboriginal children at the Fort Albany, Ont. institution. It alleges that an electric chair was used to shock children as young as 6, and that staff forced sick children to eat their own vomit.

Among the sealed materials is evidence she produced in court that included affidavits from seven claimants, interviews with survivors, and transcripts of previous criminal trials that resulted in convictions for those who worked at St. Anne’s, said Brunning.

“The reality is the federal government has had these documents since about 2003 and now they're trying to throw a cloak of secrecy even over those documents,” said Brunning. “The whole thing was about them hiding documents. My whole application was the fact that the Department of Justice has been holding these documents and hiding them for 10 years.”

Julian Falconer, one of the lawyers representing the Truth and Reconciliation Commission, said the temporary seal gives all sides time to prepare for the process.

“I think the process employed here ensures the media and others will have the opportunity to argue their case that more should be public,” said Falconer. “At the current time all matters that were historically public remain public. In my view this is standard procedure for attempting to strike a balance between the public knowing what's going on in a courtroom and not rendering the issues moot before they get ruled on.”

The hearing’s original concern was the disclosure of documents that will support the claims of survivors under the Indian Residential Schools Settlement Act. That bundle of documents will be given over to the Truth and Reconciliation Commission and the Independent Assessment Process, according to the Jan. 14 ruling.

The seal concerns evidence presented during the course of that hearing. That evidence, says Brunning, helps tell the stories of survivors of those institutions and she supports making it public, with the exception of a ban on identifying any claimants in the documents.

“As one of my clients said, What's worse? The original abuse or the fact that now they're hiding the abuse we've already proved through court proceedings?

“My clients, the former students, trust the media that they'll comply with a publication order that would merely require that they can't distribute this on the internet and they have to not identify names or identifying factors.”

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